Kevin: I think the net effect in this case, as in many hypothetical scenarios of dismantling the state in the wrong order, would be–as counterintuitive as it may seem–to increase the net level of exploitation carried out with the help of the state.

Well, I’m not sure that that’s especially counterintuitive. I’m perfectly willing to grant that there are plenty of cases where it’s true. What I’m trying to stress is that, as far as I can tell, we don’t disagree very much about the net consequences of different sequences of repeal. I agree that in the hypothetical case I gave, there might very well be a net increase in the predominance of class exploitation in the markets for labor, land, etc.

But, while I agree with you on that, I also think you have to keep in mind that when you make political choices you’re not just making choices about which God’s-eye-view net outcome you would prefer. You’re acting within the world, as one mortal creature among many fellow creatures, and when you deliberate about what to do you have to deliberate about what sort of person you, personally, are going to be, and what you, personally, are or aren’t willing to do to another human being. I know that I, personally, couldn’t live with deliberately choosing to shove around or rob another human being, or letting another human being go on being shoved around or robbed, for even a second longer, if all I needed to do to stop the latter would be to push a button, no matter how much I might prefer the results that I might be able to get from it. Because I’m not a thief or a bully, and I don’t want to let myself become an accomplice of thieves or bullies, either, even if it would otherwise improve my quality of life. Hence why I’d push the button, immediately and without reservation, even though I do in fact think that the net consequences of doing so would be substantially worse, in terms of things that I care about and which affect me personally, than the net consequences of repeal in the opposite order.

So I’m anti-gradualism not because I’m anti-dialectics, but rather because I think that there are personal obligations of justice involved in the political choices you make, and that dialectically-grounded praxis has to integrate those personal obligations into your course of action just as much as it has to integrate the general, big-picture view of class dynamics, socio-political structure, et cetera. In fact, if a process of deliberation abstracts away from the ground-level personal obligations of justice, fair treatment, etc. that we all have to each other, and only reckons what to do based on some very high-level structural-functional considerations about society as a whole and global-level net consequences, then I’d say that process of deliberation has become dangerously one-sided and acontextual. A praxis that doesn’t take into account what I could or couldn’t live with as a conscientious human being is an anti-dialectical and indeed an inhuman praxis.

But I fear that I’m beginning to throw a lot of jargon at the problem. Does that clarify or muddify?

Kevin: I’d probably even quibble as to whether it amounted to a reduction in statism even as such, since a high marginal tax rate on Bill Gates arguably amounts to the state ameliorating or moderating its primary act of statism in guaranteeing the income to Gates in the first place through IP.

Sure; this is a legitimate concern, to the degree that the exploitation in question is based not only on profiteering from the ripple effects of other, directly coercive acts, but where the exploitation is itself directly coercive (as is the case in government-enforced monopolies and captive markets). I would agree that there is some non-zero proportion of Bill Gates’s annual income, for example, which he actually has no legitimate property right to at all, and so no moral right to complain about taxation, any more than a slave-ship captain has a moral right to complain about a pirate making off with “his” gold, rum, and slaves. In such cases, my basic attitude is Tucker’s good old “No pity, no praise.”

But there are a couple problems in trying to translate this into any conclusion about income tax policy. Income tax policy has no way of distinguishing the legitimate portion of Bill Gates’s income (which I presume is also non-zero) from the extorted portion of it. In fact, in most cases, I think it would be impossible even in principle to calculate what the right proportions would be; in the absence of an actual free market process, there’s just no way to know how much of an intellectual monopolist’s income is legitimate and how much of it is an extorted monopoly rent.

And, beyond that, the tax also imposed alike on everyone in that income tax bracket, whether or not their income derives from direct violations of individual rights in the way that copyright and patent monopolists’ income does. Many if not most of the top 10% derive a lot of their income from direct coercion, but many of them do not (rather, they get fatter-than-free-market profits by profiteering of the ripple effects of other people’s coercion; but, while that’s also ethically objectionable, it’s a very different case from the standpoint of whether those profits can justly be expropriated). And if there’s even one single person who is robbed of even one cent of legitimately earned wealth by the general tax policy — and I think it’s next to impossible that nobody would be unjustly victimized by the tax — then, again, I think that’s reason enough to push the button. I couldn’t leave that one guy to go on getting robbed, even though all the rest of the people affected by the tax be a gang of pirates, swindlers, and extortionists. There are cases where expropriating the expropriators is legitimate and just; but government taxation is far too blunt a weapon to ever achieve it without inflicting a lot of collateral damage on innocent people.

“You put your trust in the state because it filters out complexities of life you either cannot manage on your own or see no need to.”

I don’t know who this “you” is supposed to be. Perhaps Jason Smathers is using “you” to mean “me.” But if so, he really ought to speak for himself. I certainly do not put my trust in the State and I find that the government and its endless reams of arbitrary laws make my life much more complicated. I’d really like to know, for example, what in the world the IRS is doing to filter complexity out of my life.

“Why do people obey unjust laws? Because — for the majority, in most cases — it’d be a whole lot more problematic and chaotic without the system there. I may recognize that a war we’re involved in is unjust, but I don’t attempt to overthrow the government because the state simplifies my life in ways that more directly affect me.”

Well. I, for one, am certain that if I were an Iraqi child, I would be happy to die, in order that Jason Smathers might live a simpler life.

Simon:

No. At least not at the federal level.

What has this got to do with the federal as against the state courts? Do you think that state judges have a right to overturn unjust state laws regardless of the provisions of constitutions of the U.S. or their own state–even though federal judges (on your view) do not? If so, what makes the difference between federal and state judges? If not, then why bring it up?

The trouble begins when (as Tully alluded to) you come to realize that different people have different ideas about what is and isn’t just.

I don’t see what the trouble is, and I don’t see the pertinence of the objections that Tully raised, unless you’ve misunderstood my question. I didn’t ask whether judges are required to uphold laws they believe to be unjust. I asked whether they are required to uphold laws that actually are unjust, which is a different question.

If there are requirements of justice which are binding, and discoverable, independently of the contents of any statutory or constitutional law, then clearly judges can’t have any duty to overturn a law in light of them. But if you intend to take that line of argument, then you’ll have your own problems to deal with. (Among other things, it entails the awkward conclusion that there are no independent standards for judging one legal system as better from the standpoint of justice than any other. This seems clearly wrong. Part of the reason to prefer modern American courts to the Star Chamber or the Spanish Inquisition or for that matter the American courts during the days of the Fugitive Slave Act, is presumably that the modern American courts do a better job of securing justice. But in order for you to say so, it must be the case that there are some independent requirements of justice against which all four systems can be held up and compared. In any case, if you don’t think so, that’s the substantive position you’ll need to try and defend, God help you.)

If, on the other hand, there are such requirements, then, whatever those requirements may in fact be, there must be at least some conceivable cases in which a case comes before a judge where (1) the statute which the judge is asked to uphold in fact violates one or more of the requirements of justice, and (2) the judge knows about the conflict between the statute and those requirements of justice. My question is about what the judge’s rights and obligations are in such a situation.

What you’re urging is for judges to be invested with the power (I put it prospectively because they certainly don’t have that power now) to eliminate the work of the legislature and substitute in their own judgment. That’s not only pernicious to a democratic system, it obliterates the rule of law, because if the law is whatever the judge in a given case thinks is a just result in that case, no one can know in advance what the law is and take reasonable steps to conform their behavior to it. It becomes a form of secret law, and secret laws are inherently tyrannical.

Well, no, what I asked is whether judges have any duty to uphold laws which are in fact violations of the substantive requirements of interpersonal justice. I’ve neither said nor asked anything about whether judges should be able to throw out laws based on any old belief they happen to have about justice, whether mistaken or not. I’m certainly willing to grant that judges should not throw out laws based on beliefs about justice which are in fact mistaken.

Given that we are talking only about cases in which the law in question actually is unjust, i.e., where enforcing it would involve committing an injustice against one or more identifiable victims, I cannot see any reason to accept your claim that overturning the law in question would involve tyranny, let alone being “inherently tyrannical.” On every definition of “tyranny” I’m aware of, it’s enforcing an unjust law that’s tyrannical, not obstructing its enforcement.

In sum, Judges have no “duty” to collaborate in the enforcement of laws that they personally regard as unjust (in such circumstances they can and ought to resign) …

Again, the question is not about what judges “personally regard as unjust,” but rather what is in fact unjust. So, taking that modification into account, and taking your (well-taken) suggestion that resignation is an alternative option into consideration, I reiterate my question to you, mutatis mutandis:

Is it your view that no judge has a duty to directly collaborate in inflicting an injustice (since she can resign rather than doing so), but that she is bound in conscience to step aside and allow someone else to inflict the injustice, even though she could have obstructed or prevented the injustice from being inflicted?

If so, why? So far the only answer you’ve given is the political expedience of compromise in majoritarian democracy. But if expedience is no excuse for personally collaborating in the sin of commission (which you seem to grant, when you suggest that the judge resign), then I cannot see why it’s a good excuse for the sin of omission, either.

Picture the scene: next February, having clawed itself out of a deep, deep hole, the Democratic party is finally in a position to start pushing its agenda through a Democratic Congress to be signed by a Democratic President. Because this is a hypothetical, we can assume that all this legislation is actually constitutional. But the courts strike down the whole lot, arguing that it’s unjust. Are you happy with such a result? I doubt it.

I almost certainly would be happy with that result, given what the Democratic Party’s agenda has generally been when it has been in power. Perhaps you’re making some unwarranted assumptions about my political views.

The only warrant for the judiciary to strike down state laws on any subject is if they attempt to exercise a power that the federal Constitution has removed from the states or if they exercise a power they would generally possess in a manner that’s illegitimate because it infringes on constiutionally-guaranteed rights ….

What if the state law is unjust?

Do you think that judges have a duty to collaborate in the enforcement of unjust laws? If so, why? If not, wouldn’t it follow that they can rightfully set them aside, whatever the United States Constitution may or may not say on the matter?